Key Issues

The recent dramatic influx of unaccompanied children and families from Central America coming through the U.S. southwest border has shed light on the complexities and shortcomings of the U.S. immigration system.

A panel of immigration experts addresses deportation concerns during the ABA Annual Meeting in Boston.

While many assume the right to appointed counsel, those recent immigrants now in court proceedings are not guaranteed representation, and the demand for legal services far exceeds available pro bono resources.

On Saturday in Boston, a panel of immigration experts at the Annual Meeting program, “No Deportation Without Representation?” discussed the plight for legal representation of individuals held in detention centers throughout the U.S., and examined several innovative programs around the country that provide appointed counsel to this vulnerable population. The program was sponsored by the ABA Commission on Immigration.

“The issue of representation in immigration proceedings has always been of interest to me. Since I first joined the board of Immigration appeals many years ago, I was really quite surprised, in a bad way, to see the levels of representation at that time,” said Juan Osuna, director of the Department of Justice's Executive Office for Immigration Review. “It was not good, obviously for the individuals, but also not good for the system.”

Deportation laws have been called labyrinthine and complex, and persons with mental disabilities, children, and immigrant parents of children who U.S. citizens are not entitled to appointed counsel to help them through the process. According to the experts, the lack of legal representation in immigration and deportation proceedings is an impediment to the fair and efficient delivery of justice, and contributes to the backlogs in immigration courts.

Panelist Robert Katzmann, chief judge of the U.S. Court of Appeals for the Second Circuit in New York, said that when he became a judge in the federal court in 1999, the percentage of cases that were immigration cases where minuscule. However, by 2005-2006, the docket of the second circuit in immigration cases rose 40 percent.

Immigration studies and reports say that, 83 percent of those in detention by U.S. Immigration and Customs Enforcement are unrepresented, and that 60 percent of individuals who are not detained go unrepresented.

“I was able to see in case after case, the carnage that results when families and individuals don’t have adequate counsel,” Katzmann said. “I always had the sense, in many of these cases, that if there had been a good lawyer, the outcome might have been different, the family might not have been torn to sunder.”

Panelists agreed that immigrants who remain detained and are represented by counsel throughout deportation proceedings are a lot more likely to succeed in preventing deportation than detained immigrants who are forced to proceed without attorneys.

“By the time the case gets to the court of appeals we often have very limited leeway,” Katzmann said. “The record that is made below at the very outset essentially seals the fate of many of the non-citizens in court. We can only overturn a result if the record is inadequate, if its arbitrary or capricious, or if there is an error in law. So having a good lawyer at the outset makes all the difference.”

Katzmann, who has been involved in many initiatives to address the issue of adequate counsel for immigrants, spoke about recent developments in his state and shed light on some of the programs that are leading the way in finding a solution to the problem.

The New York Immigration Representation Study, an initiative launched by Katzmann in 2010, focused on increasing pro bono activity, improving mechanisms of legal service delivery and rooting out inadequate counsel. The study resulted in The New York Immigrant Family Unity Project, which was a proposal to create the first fully government-funded assigned counsel system for cases of detained immigrants. It recently became a resource that will provide legal representation for New Yorkers who are detained and facing deportation.

“The New York City Council, a few months ago passed appropriation, which means that for the first time in New York City everyone who is detained will have a lawyer,” Katzmann said. “That is a significant breakthrough and could be a model for other jurisdictions.”

Another initiative includes the Immigration Justice Corps, the country's first fellowship program that provides legal assistance for immigrants seeking citizenship and fighting deportation.